2006 (12) TMI 525 - SUPREME COURT OF INDIA

2006 (12) TMI 525 - SUPREME COURT OF INDIA - TMI - Appeal (civil) 4953-4957 of 1998 - Dated:- 7-12-2006 - S.B. Sinha And Markandey Katju, JJ. JUDGMENT: S.B. Sinha, J. The Central Government floated a Scheme known as Integrated Child Development Service (ICDS) Programme in the year 1975. It is funded by the Central Government. Its application, however, is at the hands of the respective States. Anganwadi workers are appointed from amongst the local inhabitants. Selection is made by a committee. Un .....

aff has 3 ministerial hands, namely, the Statistical Assistant, Assistant and LDC. For manning these 3 posts, the State Governments/UTs can chose any 3 suitable class III (Category C) posts and designations (such as Senior Clerk, UDC, Jr. Clerk, LDC, Accountant, Accounts Clerk etc.) and let these 3 posts be manned by them. These posts can carry pay scales as per State Government's rules and this Ministry will provide funds fully for all such posts. The redesignation of these posts would depe .....

177], it was held that the said application was not maintainable. Correctness of the said decision came to be questioned. The matter was referred to a larger bench of the Tribunal. By reason of the impugned judgment, the Tribunal held the said application to be maintainable opining that although Anganwadi workers and helpers are paid honorarium, they hold civil post. The State of Karnataka is before us questioning the correctness of the said judgment. This Court issued notice to Union of India a .....

f civil posts. They can contest elections. It was submitted that for filling up of the said posts, no advertisement is required to be made, nor the provisions of the recruitment rules are required to be complied with. Ms. Rekha Pandey, learned counsel appearing on behalf of Union of India would support the contention of Mr. Hegde supplementing that Anganwadi workers are appointed on a budget scheme and if it is to be held that they and their helpers who were to work as volunteers to render certa .....

t or not must be considered having regard to the tests laid down by this Court in determination of the relationship of employer and employee. The learned counsel would urge that casual railway employees, part- time employees having been held by this Court to be holders of civil post, there is no reason as to why the respondents would be treated differently. It was submitted that Anganwadi workers must not be paid wages less than the minimum wages fixed by the State as the same would amount to be .....

from paragraph 3.1.18 of the Scheme as noticed hereinbefore. Indisputably Anganwadi workers and helpers were not to be appointed on a pay scale. They are to be paid honorarium. The amount of honorarium has since been increased and just at present is as under: "Anganwadi Workers Qualification/ Experience 1975-76 1.4.78 1.7.96 2.10.92 16.5.97 1.4.02 Non Matriculate 100/- 125/ 225/- 350/- 438/- 938/- Matriculate 150/- 175/- 275/- 400/- 500/- 1000/- Non Matriculate with 5 years exp. - 250/- 37 .....

rs pay additional honorarium from their own resources. Union of India has also constituted a Review Committee pursuant to its recommendations the following benefits have been granted: "i. The Anganwadi Workers and Helpers have been allowed 'paid absence' on maternity for a period of 135 days vide letter dated 28.12.2001 ii. The U.O.I. initiated a scheme, on a year to year basis for awards for selected Anganwadi workers on the basis of their dedication and performance. The scheme for .....

mmendations of the committee, which call within the purview of the States:- (a) State/ UT Government should contribute some monetary incentive to these workers for the additional work assigned to the Anganwadi Workers and Helpers under various schemes and programmes. (b) "Anganwadi Workers and Helpers Welfare Fund" may be set up by the State/ UT Governments at the State/ UT level out of the contribution from Workers/ Helpers and State/ UT Governments. (c) State/ UT Governments should p .....

f Anganwadi workers are not statutory posts. They have been created in terms of the scheme. It is one thing to say that there exists a relationship of employer and employee by and between the State and Anganwadi workers but it is another thing to say that they are holders of civil post. We are not oblivious of the fact that their presence in their respective villages is extremely important. They are supposed to make significant contribution to the society. They, we understand, are required to ca .....

iples and overruling the decision of the Division Bench, the correctness whereof falls for our decision. We, as at present advised, are not inclined to enlarge the scope of this appeal and, thus, refuse to go to the factual details of the matter, particularly, when they do not form part of the records. Before we advert to the rival contentions of the parties, we intend to examine the decision of this Court whereupon strong reliance has been placed by the learned course for the respondents. In St .....

"post" and "civil post". The sense in which they are used in the Services Chapter of Part XIV of the Constitution is indicated by their context and setting. A civil post is distinguished in Art. 310 from a post connected with defence; it is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the Union or a State. See marginal note to Art. 311. In Art. 311, a member of a civil service of the Union or an all- .....

n holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether ther .....

nted and which may exist apart from and independently of the holder of the post. Article 310(2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and it emphasises the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post u .....

a Master and a Servant; (v) he holds an office on the revenue side of the administration to which specific and onerous duties in connection with the affairs of the State are attached; (vi) the office falls vacant on the death or removal of the incumbent; (vii) he is a responsible officer exercising delegated powers of Governement; (viii) he is appointed revenue officer. Anganwadi workers, however, do not carry on any function of the State. They do not hold post under a statute. Their posts are n .....

is Court in Union of India and Others v. Deep Chand Pandey and Another [(1992) 4 SCC 432] wherein casual employees were found to come within the purview of Section 14(1) of the Act holding: "An examination of Section 14 and Section 3(q) clearly indicates that the Act covers a very wide field, and there is nothing to suggest that the provisions dealing with the jurisdiction of the Tribunal should receive a narrow interpretation" In that case, the employees were seeking temporary status. .....

e provisions of the Karnataka Village and Local Boards Act are government servants, stating: "13. Another significant provision is Sub-section (2) of Section 80 of the Act which says that subject to the provisions of Rules made under the proviso to Article 309 of the Constitution, the qualifications, powers, duties, remuneration and conditions of service including disciplinary matters of such Secretary shall be such as may be prescribed. 14. The provisions in the Act to which we have advert .....

nment. When it comes to the Secretaries of the Panchayats appointed under the Act, their selection for appointment, their termination from service, their liability for transfer and all other conditions of their services are as provided for under the Rules made under the Act or other rules made under Article 309 of the Constitution in respect of services of the State Government servants. When Sub-section (2) of Section 80 of the Act to which we have adverted states that subject to the provisions .....

ecision ex facie cannot be said to have any application in the instant case. Reliance has also been placed by Ms. Jaisingh on State of U.P. and Others v. Chandra Prakash Pandey and Others [(2001) 4 SCC 78]. The question which was involved therein was appointment of Kurk Amins on salary basis for realization of dues of cooperative society. Again following Shri Kanak Chandra Dutta (supra), it was held that Kurk Amins having been appointed by the State for the purpose of collection of revenue would .....

the decisions referred to hereinbefore centers round application of a statute. In all those cases, posts are statutory ones. Terms and conditions of services of the holder of the posts were governed by statutes. However, rules framed under proviso to Article 309 of the Constitution of India are not attracted in the case of the respondents. They are appointed under a scheme which is not of a permanent nature although might have continued for a long time. Appointments made under a scheme and recru .....

ticles 77 or 162 of the Constitution of India or under a statute vis-vis cases of this nature who are sui generis. Terms and conditions of services of an employee may be referable to acts of appropriate legislature. The matter may also come within the purview of Article 309 of the Constitution of India as proviso appended thereto confers power upon the President or the Governor of a State or other authority, who may be delegated with such power, to make rules during the interregnum. The result o .....

and Another [(1992) 4 SCC 404], this Court while considering the provisions of Article 191(1)(a) of the Constitution of India in relation to the posts held by the employees of an Integrated Tribal Development Agency opined that their employees would not be holder of office of profit although the State exercises control thereover holding: "It is also necessary to bear in mind that the Government is undertaking several projects and activities including commercial activities through the corpo .....

ation for contesting the elections except to the extent indicated therein. This aspect also has been considered in some of the above- mentioned decisions. If a strict and narrow construction is to be applied that amounts to shutting off many prominent and other eligible persons to contest the elections which forms the fundamental basis for the democratic set-up. Therefore several factors as indicated above depending upon the facts of each case have to be taken into consideration in deciding whet .....

protection under Article 311 of the Constitution of India. Reference to the provisions of the Minimum Wages Act, in our opinion, is also not apposite. The said Act is applicable to the workmen working in the industries specified therein. It is not the case of the respondents that the ICDS programme would constitute an 'industry' or Anganwadi workers are industrial workmen. There cannot be any doubt whatsoever that it is one thing to say that the State would be liable to pay minimum wage .....